Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Colorado’s child protection system is governed by the Children’s Code, which was passed in 1975 to “balance the best interests of children and the privacy interests of children and their families with the need to share information among service agencies and schools and the need to protect the safety of schools and the public at large.”
Section 307 of the Children’s Code generally requires that “reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports… be confidential.” This confidentiality requirement is enforced by two distinct penalties. The statute also lists a number of individuals and entities that may lawfully access confidential reports.
One function of Section 307 is to fulfill Colorado’s obligations under the Child Abuse Prevention and Treatment Act, which conditions federal funding for state child protection systems on the state’s use of “methods to preserve the confidentiality of all records in order to protect the rights of the child and the child’s parents or guardians.”
Jessica Peck is a private attorney who represents family members in investigations of suspected child abuse or neglect in Colorado. In January 2019, Peck represented the mother of a three-year-old girl in a dependency and neglect case in Denver Juvenile Court. While the case was ongoing, Peck made statements to the Denver weekly newspaper Westword suggesting that Denver Human Services filed the case against her client “without a single shred of evidence, based on one family member standing up for another family member in advance of trial when the accused is still in jail.”
Peck also provided Westword with an excerpt of a caseworker supervisor’s email detailing the concerns DHS had about her client. Peck further told Westword the date, time and location of an upcoming hearing in the case.
After the Westword article was published, the Juvenile Court Magistrate presiding over Peck’s case issued an order stating “that Counsel for Respondent Mother… may have disclosed information to a non-party in violation of § 19-1- 307(1)(a),” and emphasizing that “any identifying information pertaining to this dependency and neglect proceeding shall be kept confidential in accordance with § 19-1-307(1)(a) and § 19-1-303.” The court took no further action against Peck and she wasn’t contacted by any law enforcement authority.
Peck filed this action in the U.S. District Court for the District of Colorado on Dec. 9, 2019, and an amended complaint on Jan. 29, 2020, seeking a court order declaring that Section 307 is unconstitutional and enjoining its enforcement. She initially named several state government defendants, but the district court dismissed all except Michelle Barnes and Beth McCann in their official capacities as executive director of DHS and district attorney.
In July 2020, the parties filed a joint stipulation of facts for the district court to rely on for summary judgment. Peck also filed a sworn declaration stating that she desires in the future to rely on the child abuse reports she comes across during her work to call out misconduct by government officials and government employees to the public. She stated her belief that Section 307 unconstitutionally prohibits such speech, and that she would risk prosecution under the statute by engaging in her desired speech.
Peck and the defendants filed cross-motions for summary judgment. The district court granted Peck’s motion, enjoining enforcement of both Section 307(1)(c) and Section 307(4) and granting reasonable costs to Peck. Barnes and McCann appealed.
The district court concluded that Section 307 generally reached non-identifying and identifying information, thereby allowing Peck’s claim to proceed against both Section 307(1) and Section 307(4). But, according to the 10th Circuit Court of Appeals, the district court read Section 307 as a whole, failing to explain and interpret key differences between the separate penalties in Section 307(1) and Section 307(4). Looking at the sections individually, the circuit determined that Peck lacked standing to challenge 307(1) because it reaches only identifying information, and Peck isn’t injured by it.
The court allowed Peck to advance against 307(4), determining that her alleged injury satisfied the necessary requirements of the Walker test: Peck previously engaged in this type of speech affected by the challenged government action, has adequately stated a present desire to engage in future speech, showed a credible threat the statute would be enforced in the future and that the case is ripe.
The 10th Circuit Court of Appeals affirmed in part and reversed in part the district court’s decision, striking down Section 307(4) as unconstitutional but finding that Peck hasn’t stated a valid challenge to Section 307(1) and leaving that provision in effect. The circuit remanded to the district court to assess whether the invalid Section 307(4) is severable from the rest of the statute.
Kristen Guadiana was employed by a division of the Denver Department of Human Services at the City and County of Denver, but dismissed from employment during her probationary period for failure to meet performance standards. Guadiana sued, claiming disability discrimination and retaliation in violation of the Americans with Disabilities Act. Guadiana has cerebral palsy, causing paralysis on the left side of her body and making her unable to use her left hand for certain manual tasks.
Denver filed a motion to dismiss the case, asserting sovereign immunity, but a district court denied the motion. Denver appealed.
Denver hired Guadiana as an eligibility technician in the Family and Adult Assistance Division of DDHS on May 15, 2015. As an ET, Guadiana was responsible for determining clients’ Medicaid eligibility and completing a certain number of applications each day. The accuracy of these applications was tracked. Guadiana and approximately 20 other ETs reported to Nora Pacheco, FAAD’s eligibility supervisor.
Within several months of starting, Pacheco and a few others noted that Guadiana typed with only one hand. Guadiana disclosed to them that she wasn’t able to type with her left hand because of her cerebral palsy. Every month, as with all ETs, Guadiana met one-on-one with Pacheco to see how she was doing and if she needed anything. Just before the close of each meeting, Pacheco disclosed Guadiana’s performance numbers, such as completed applications and accuracy.
On Nov. 5, 2015, Pacheco told Guadiana her numbers were low and that Denver would be extending her initial probationary period. When Pacheco asked if Guadiana knew why the numbers were low and if she needed anything to assist her, Guadiana responded by reminding Pacheco about her inability to type with her left hand. Pacheco contacted Wilma Springer, the ADA Coordinator at Denver’s Human Resources office, who sent a Reasonable Accommodation Questionnaire to Guadiana’s physician around Nov. 12, 2015; the physician promptly returned a completed copy.
On Nov. 9, 2015, DDHS sent a formal memo to Karen Niparko, the executive director of HR, requesting a 60-day extension of Guadiana’s probationary period to “allow more time to manage the ADA interactive process.” A month later, Gabriel Millán, Pacheco’s supervisor and FAAD Operations Manager, contacted Elizabeth Ortiz, Guadiana’s previous supervisor. Millán asked about Guadiana’s job duties, whether she had any special accommodations and her reason for leaving. Millán circulated the feedback from Ortiz to Springer and two HR employees. Guadiana didn’t consent to this contact and was unaware Millán had reached out to Ortiz until Denver’s April 2017 response to Guadiana’s charge of discrimination.
On Jan. 8, 2016, Denver requested another 60-day extension of Guadiana’s probation, this time through May 17, 2016. In the memo to HR requesting this extension, Denver stated DDHS would purchase voice-activated software for Guadiana by Jan. 31, 2016, and that Guadiana would be given one month to set up and become acclimated to the software before Pacheco could begin tracking and evaluating Guadiana’s productivity.
On Jan. 12, 2016, Springer shadowed Guadiana to assess what accommodations would be useful. Springer suggested Guadiana might benefit from a one-handed keyboard, voice recognition software and an ergonomic assessment. Springer also stated that, if these reasonable accommodations were unhelpful, Denver would need to find Guadiana a different position within the City of Denver. On Jan. 25, 2016, Safety Officer Gary Freeman conducted an ergonomic assessment of Guadiana’s workspace. In his report, Freeman recommended that Denver provide Guadiana with a “short” keyboard and a 10-key keypad for entering numbers.
Guadiana was on approved leave from mid-February to mid-March for an unrelated medical issue. While on leave, the keyboard arrived but wasn’t installed and the ten-key keypad was never ordered. Springer also ended the interactive process via letter on Feb. 25, 2016, despite the fact that Guadiana hadn’t yet used either keyboard. When Guadiana returned to work, she had a temporary part-time schedule, working four hours per day.
During another one-on-one meeting between Pacheco and Guadiana, Pacheco told Guadiana that she didn’t meet her goals for February or March, but that she was on track to meet her goals in April. Guadiana asked how Pacheco calculated the numbers for February and March as she had only worked 11 days in February and 14 half-days in March. Pacheco refused to discuss the matter.
Upon returning to work in March, Pacheco assigned Guadiana to a call center where she gave information to clients about their cases but didn’t enter information into the computer system. Although Pacheco said she took these calls “into account” when calculating the performance numbers, Pacheco never described how she did so.
In March, Pacheco provided Guadiana with a Performance Enhancement Progress Report for the period of May 18, 2015 through Dec. 31, 2015. Before Guadiana’s approved accommodations were in place, Pacheco gave Guadiana a “below expectations” rating and left out any reference to Guadiana’s need for reasonable accommodations.
Around April 12, 2016, a proper short keyboard finally arrived and was installed. On April 21, 2016, Denver terminated Guadiana for allegedly failing to pass employment probation. Guadiana filed for unemployment insurance benefits and identified Denver as her employer. Guadiana filed an EEOC charge of discrimination against Denver within 300 days of her termination and on Sept. 28, 2020, the EEOC issued a notice of right to sue.
In her complaint in district court, Guadiana claimed Denver discriminated against her because of her disability in violation of the ADA and that Denver retaliated against her after she made the accommodation request.
The complaint included allegations that Denver hadn’t taken into account Guadiana’s disability-related performance issues; contacted her former supervisor at a previous employer about accommodations received; ended the interactive process without assessing the effectiveness of the approved accommodations; terminated Guadiana without evaluating whether her performance issues improved following the accommodations; failed to offer additional reasonable accommodations, including transfer to a vacant position for which she was qualified and otherwise failing to engage in the interactive process in good faith.
The district court denied Denver’s claim of sovereign immunity, finding that Guadiana plausibly alleged that she was an employee of the city and not only DDHS — and that Denver admitted this in its motion.
According to the 10th Circuit Court of Appeals, the sole issue in this case is whether the district court erred in its decision to deny Denver’s motion to dismiss by finding Denver wasn’t entitled to 11th Amendment immunity. The Supreme Court extended the 11th Amendment’s applicability to suits by citizens against their own states. The Court has also held that the 11th Amendment protects state agents and agencies who are “arm[s] of the state” from being sued in federal court.
While Denver claims it’s entitled to sovereign immunity because “[Denver] was acting as an agent of the state,” Guadiana argued that she was employed by Denver and that she has only brought claims against Denver, not DDHS. The 10th Circuit agreed. According to the court, because sovereign “immunity… doesn’t extend to counties, cities, or other political subdivisions of the state,” they found that the district court didn’t err and that Denver isn’t entitled to sovereign immunity.
The 10th Circuit Court of Appeals affirmed the district court’s decision.